Answer By law4u team
In the military, disciplinary records are used to document a service member’s violations of military law or misconduct. These records play a significant role in a service member’s military career, affecting promotions, security clearances, and even future employment opportunities. However, some service members may seek to have their disciplinary records expunged or sealed, especially if they have demonstrated rehabilitation or if the record is causing an unfair disadvantage. The process of expunging military records is complex and typically limited under military law, but there are options for certain situations where records may be altered or sealed.
Process for Expunging or Sealing Disciplinary Records:
Understanding Expungement in the Military:
Expunging records generally refers to the removal or sealing of disciplinary actions from a service member’s permanent military record. In the military, this is often more limited than in civilian contexts. Military records are typically maintained throughout the individual’s career and can follow them even after separation or discharge.
Unlike in civilian legal systems, the military does not typically erase records entirely. However, service members may have options to reduce or modify the impact of certain disciplinary actions, depending on the nature of the offense and the circumstances surrounding it.
Conditions for Expungement or Sealing of Records:
Completion of Sentence or Punishment:
In some cases, service members who have completed the punishment related to their offense may request that their disciplinary record be reconsidered. This could be based on the claim of rehabilitation or good behavior following the violation.
Non-Judicial Punishment (NJP):
In cases where a service member has been subjected to non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), the records may be removable or sealed in certain cases. The commanding officer can review the decision and potentially alter or remove the record.
Post-Service Rehabilitation:
If a service member has demonstrated rehabilitation after a period of misconduct, especially for minor offenses, they may request that their disciplinary records be expunged or sealed to show they are fit for service or civilian life.
Length of Service and Good Conduct:
In some instances, the length of time since the offense and the service member’s good conduct during service can influence whether their disciplinary records can be sealed. Commanding officers may be more likely to approve expungement if the service member has a clean record since the incident and has shown exemplary service since the infraction.
Process for Expunging or Sealing Records:
Request to Commanding Officer:
A service member who wants to have their disciplinary records expunged or sealed must first request a review from their commanding officer. The request is typically made in writing, explaining the reasons for the request and providing evidence of rehabilitation or good conduct.
Review by Higher Command:
If the commanding officer is not authorized to make a decision, the request may be sent to higher-level command for further review. In cases of severe misconduct or significant violations, it is unlikely that disciplinary records can be fully expunged.
Discharge or Separation Cases:
In some cases, service members may seek to have their disciplinary records expunged in the context of a discharge or separation. Depending on the type of discharge (e.g., honorable discharge, general discharge, other than honorable discharge), certain records may be sealed or expunged after a certain period, or they may be addressed as part of an appeal process.
Honorable Discharge and Sealing:
In some instances, if the service member is discharged honorably, they may be eligible for a record review and possible expungement of minor disciplinary actions, particularly if those actions occurred early in their career and have since been addressed through rehabilitation.
Board of Correction for Military Records (BCMR):
If a service member believes their disciplinary records should be expunged but cannot get approval through regular channels, they may apply to the Board of Correction for Military Records (BCMR). The BCMR reviews cases where errors or injustices have occurred and has the authority to modify a service member’s military records, including disciplinary actions, if warranted.
The BCMR can review issues such as wrongful discharge, errors in the record, or violations of military regulations that may have unjustly affected a service member’s record.
Criteria for Expungement or Sealing:
Minor Offenses:
For minor infractions that are not severe in nature, expungement or sealing may be more likely, especially if the service member has shown significant improvement.
Serious Offenses:
Serious offenses, such as sexual assault, drug offenses, or violent conduct, are less likely to be expunged or sealed due to their severe impact on the service member's military career and the military’s commitment to maintaining discipline.
Time Factor:
The passage of time without further violations can play a role in whether an expungement is granted. For instance, if a service member has demonstrated good conduct for several years after a minor infraction, they may be eligible for consideration of expunging or sealing the record.
Impact of Expungement on Military Career:
If successful, the expungement or sealing of a disciplinary record can have a positive effect on a service member’s career. It may improve promotion potential, enhance security clearance eligibility, and mitigate any negative effects on future military or civilian employment.
While the record may be sealed or hidden from public view, military authorities may still have access to the full service record in certain situations, such as during higher-level clearances or when the service member seeks reentry into the military.
Example:
Minor Infraction Case: A service member receives a non-judicial punishment (NJP) under Article 15 of the UCMJ for a minor misconduct violation, such as being late to formation. The service member has demonstrated good conduct and no further disciplinary issues for the next three years. They submit a request to their commanding officer to have the NJP record removed or sealed. The commanding officer reviews the request and considers the service member’s rehabilitation and good conduct. Based on the circumstances, the commanding officer may approve the expungement or sealing of the record.
Serious Offense Case: A service member is convicted of drug possession in a military court martial and receives a bad conduct discharge. Given the severity of the offense, the service member’s request for expungement is unlikely to be granted, especially as it involves a serious criminal offense. However, they may apply to the Board of Correction for Military Records (BCMR) for a review of their case, depending on the circumstances and any post-conviction rehabilitation.
Conclusion:
Expunging or sealing disciplinary records in the military is a difficult process and is generally reserved for minor infractions, service members who have demonstrated rehabilitation, or those who have shown exemplary service after the offense. The military system does not fully allow for the erasure of records, but review and reconsideration of certain disciplinary actions can be possible under specific conditions. Service members seeking to expunge their records must understand the limits of military law and may need to apply to higher authorities, such as the Board of Correction for Military Records (BCMR), for reconsideration.
